40. The attempts, which we have been reviewing, to establish what degree of care is appropriate on the part of an occupier for various categories of entrants represent the legal philosophy of a bygone age. This philosophy was most neatly expressed by Mr. Justice O.W. Holmes. One of the applications he made of his famous aphorism that the life of the law is experience was to argue that the proposition that a man must exercise reasonable care should always be giving way as the law developed to rules that he should exercise this or that precaution in this or that situation. Ironically, the disproof of this proposition (put forward in his The Common Law (1881)) seemed to emerge from Mr. Justice Holmes' own experience, for in a whole series of cases after his retirement from the Supreme Court of the United States his colleagues found it necessary in the interests of justice to depart from rules which he had laid down about what was reasonable care in particular types of cases. The account of the law relating to occupiers which we have given demonstrates, we believe, that the same thing would have happened to the rules relating to the care which occupiers must take for particular categories of entrants had they not become too firmly fixed in the law at too early a stage. The complexities we have observed both in the definitions of the rules themselves and in the accounts of their relation to the law of negligence seem to be due not only to the marginal cases which must always arise in applying any rules, but also to the effects of temptation in the interests of justice to find means of escaping from one or other of the rules in cases where in the absence of such pressure the rule might naturally be applied. Convincing evidence of the wide-spread character of dissatisfaction with the distinction between invitees and licensees is to be found in the passage of the English, Scottish and New Zealand Occupiers' Liability Acts abolishing it and establishing a common duty of care and in the recommendations which led to them (Supra paragraph 4). Nor have these attacks been lacking in Australia. In Mortomore v. McPhersons Ltd.((1957) 74 W.N. 294) Mr. Justice Brereton said that "there has commonly been an approach to the problem which involves attaching a label to the plaintiff, namely 'invitee' 'employee' or 'licensee' and determining the defendant's duty accordingly without much reference, if any, to any of the multifarious detail in the relationship varying immensely from one case to the next". So, too Professor Fleming: "The emphasis on categories and labels involves a high degree of formalism which experience has proved to be a fertile source of unrealistic distinctions, capricious results and all too many appeals on what should be questions of fact but are distorted into questions of law" (Fleming on Torts (3 ed. 1965) 404). In Scotland the condemnation has extended to the rules relating to trespassers and is reflected in the provisions of the Scottish Occupiers' Liability Act, 1960 applying the test of reasonable care to the duties of occupiers to trespassers. Behind this was the dissatisfaction felt in Scotland at the imposition upon that country of the English category rules by the House of Lords decision in a case relating to trespassers, Robert Addie & Sons Ltd. v. Dumbreck (Supra paragraph 10). Speaking of the results of this case a Scottish writer says:

Not merely was this a subversion of the common law of Scotland but it gave rise to many narrow and difficult arguments on categorisation, particularly as between invitee and licensee. The insistence on labels, categories and rigidly distinct compartmentation obscured fundamental principles and produced results exhibiting the worst characteristics of purely mechanical jurisprudence.

The categories, in later cases, showed a great tendency to shade into one another and similar facts were sometimes differently categorised as between Scotland and England at different times. There was also a noticeable tendency to treat judicial formulations of a duty of care as canonical and to accord them the deference, and the casuistic interpretation, usually reserved for statutes (D.M. Walker, 2 Law of Delict in Scotland (1966) 588).

It is fashionable nowadays to deprecate "mechanical jurisprudence", of which the common law categories of visitor have often been cited as an example, and to favour an enlargement of judicial discretion by the formulation of broad standards to do "Justice" in the particular case. This tendency is often to be welcomed, particularly where the rigid categories of the law law owe their existence merely to the accidents of legal history or have given rise to a wealth of subtleties and refinements disproportionate to any practical gain in legal certainty. But the critics of mechanical jurisprudence appear sometimes to forget that a legal system has the practical function of resolving and preventing disputes and to place a pathetic trust in the infallibility of judicial discretion. Justice is not an absolute, given to all of us, or even to all judges, to see alike.... The reports of recent years contain many cases in which appeal courts have reviewed the question whether the defendant took reasonable care in the circumstances of the case, sometimes with a remarkable lack of unanimity of opinion. The interpretation of the common duty of care now imposed on occupiers is bound to add to the number of these appeals (Douglas Payne, "The Occupiers' Liability Act" (1958) 21 Modern L.R. 359, 373-4).

(b) The Formulary Rules as Controlling Juries

42. In interpreting the English experience for New South Wales mention should be made of the different legal environment in which reform would operate in this State owing to the general use of the jury in this type of case and the existence of a New South Wales Government policy in favour of its continuance. A feature of formulary rules laying down what can be required in a given situation is that they restrict the role of the jury - the limitations on liability in these rules may have the effect of preventing the matter from going to the jury at all for lack of evidence of the conditions the rules impose for liability, or may have the effect of calling for narrower issues to be submitted to the jury than would be the case in ordinary actions of negligence. Mistrust of the consequences of permitting a jury to consider at large the reasonableness of the defendant's conduct in this area of liability has been evident in the cases from the outset and must have contributed to the formulary approach. In Toomey v. London and Brighton Railway ((1857) 3 C.B. (N.S.) 146) the plaintiff was an illiterate passenger on the defendant's railway who, mistaking a door marked "Lamp Room" for an adjoining door marked "For Gentlemen", fell down a staircase and was injured. Holding that there was no evidence for the jury, the Judge said: "Every person who has any experience in Courts of Justice knows very well that a case of this sort against a railway company could only be submitted to a jury with one result" (Id. at 150). In New South Wales the Railway Commissioner is a prominent defendant in cases of this kind and there seems to be some impression that the readiness of juries to give favours to members of the general public at the expense of railway authorities persists. It was in Commissioner for Railways (N.S.W.) v. Anderson that Sir Wilfred Fullagar, in his dissenting holding that there was no case on the facts for the jury which had awarded damages to the plaintiff invitee against the defendant Commissioner, complained that "the word 'negligence' has tended of recent years to lose all meaning" and added, quoting Sir Frederick Pollock, that "we still have to take notice that there are such things as inevitable accidents which are nobody's fault" ((1961) 105 C.L.R, 42, 58). Sir Wilfred is here referring to a tendency which the American writer Ehrenzweig provocatively terms the development of "negligence without fault", and a leading American torts text frankly recognises that in American conditions, where juries are also general, the effect of substituting a general liability in negligence for the formulary rules would be to establish something approaching strict liability of occupiers to entrants. Fleming James writes:

It may be argued with some reason that, however careful a defendant has been, in nearly every case the ingenuity of counsel after the event can suggest some further or alternative precaution that might have avoided injury, and since juries are ever ready to find a defendant negligent this would in practice burden occupiers of land with an infinite series of precautions, or in effect make them insurers against injury caused by the dangerous conditions of their land. Something approaching this obtains broadly in the accident field. The question here is whether or not the use of land ought to be exempted from the treatment accorded to enterprise generally.... The bulk of these accidents involve industrial or business property and the slight risk of the small landowner is readily and reasonably insurable (Harper and James, 2 Law of Torts, 1437).

(c) The Strict Liability Solution

43. It is against the background of these problems that the question arises whether the common duty of care, as established by legislation in England and New Zealand, and over a broader area in Scotland, would offer a solution to the difficulties felt with the formulary rules and at the same time offer sufficient means of control over tribunals of fact to prevent the imposition of liability in cases where the jury entertained no real belief that negligence had been proved. It is not considered that there would be any pressure in New South Wales for the imposition of strict or absolute liability independent of negligence in this area overtly or covertly. For while it is true that most industrial enterprises would carry public risk insurance, or be large enough to dispense with it, and while it is true that a private person may obtain substantial personal liability cover at modest cost (in the area of six to eight dollars annual premium for a liability cover of $100,000 to $200,000), a comparatively small number of such personal liability policies are in fact issued. If injustice were to be avoided after liability was revolutionised - a step which would itself necessarily make a difference to the cost of such insurance which it is difficult to estimate - it would be necessary at least to institute a campaign to popularise such insurance if not to ensure that the defendant is insured by compelling the householder to do so, perhaps along with his local rates. Either course would necessarily mean that prospective plaintiffs and juries in an action of this sort would come to expect the defendant to be insured and this seems more likely to lead through an increase in the number of actions and the scale of damages to increases in the cost of insurance against liability than tightening the conditions of liability in itself. We do not feel disposed to suggest entry on this treadmill.

(d) The "Common Duty of Care" Solution

44. The English Occupiers' Liability Act, 1957 (5 & 6 Eliz. 2, c. 31), to the background of which we have already referred (Supra paragraph 4), provides by the first two subsections of s. 2:

2. -(1) An occupier of premises owes the same duty, the "common duty of care", to all his visitors, [the term "visitors" is elaborated in the Act in such a way as to exclude trespassers] except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

(2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

The care which an occupier of premises is required, by reason of his occupation or control of the premises, to show towards a person entering thereon in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which the occupier is in law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement his obligation towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.

46. It may appear to some that a judge's conviction that the plaintiff was not endangered by the defendant's acts could be given effect to by an exercise of the judge's power to hold that there is no evidence of negligence to go to the jury. But insofar as the question of danger to the plaintiff arises under the latter head it arises in the form of the question whether a reasonable man in the position of the juryman could properly come to the conclusion that the plaintiff was endangered. This is a question which may often call for a positive answer from the judge, resulting in the submission of the case to the jury, where the question whether on the undisputed facts or the facts as they might be found the plaintiff was a person endangered, would bring a negative answer from the same judge. Thus it appears that the course taken in the United Kingdom and New Zealand legislation involves real and not merely formal limitations on the judge's powers as they exist under the modern common law approach to negligence actions.

47. The history and present state of the law as we have outlined it appears to us to show that many of the difficulties, especially those which we have outlined in the section on the present law of occupiers' duties and the law of negligence (Supra paragraphs 1-13), arise from the conflict between older and newer approaches to negligence. It is therefore a great step forward to substitute a duty of reasonable care for the defined duties as the United Kingdom and New Zealand Acts do. But the persistence for so many years of the categories and the measure of support the old rules receive from critics of the legislation is also indicative of the sensitive relations which are involved. The old danger that a jury with no property interests would behave unfairly to the property owner has no doubt diminished with the broadening of home ownership, just as the danger that the judge may serve in his exercise of his functions the interests of the property owner - a factor frequently alleged to have been responsible for the restricted duties on occupiers - has diminished with the growth of equality of opportunity to achieve office in our society. At the same time the pressure to find a remedy for the injured against someone, in a society dominated by notions of social welfare, however it may operate in fields like motor and industrial accidents where liability insurance is compulsory, can be productive of individual injustice where the insurance situation is the different one we have described above (Supra paragraph 43). We are not therefore disposed to recommend that the common duty of care be imposed ipso facto on occupiers either in relation to lawful visitors or in relation to visitors generally.

(e) A Fresh Start on Modern Common Law Principles

48. In view of the considerations to which we have referred we tentatively propose that legislation should be introduced which in its main provision should in effect (a) require the judge to determine whether a duty of care by the occupier to the visitor arose in the circumstances of the case on modern common law principles, (b) provide that where such a duty is determined to exist it shall be an ordinary duty of reasonable care.

(f) Application of This Approach to Trespassers

49. In our tenative opinion such an approach, applied to all visitors and not restricted in the manner of the English and New Zealand Acts to lawful visitors, would offer on balance the best means of dealing with duties to trespassers, the most difficult of the many questions in this area from the point of view of the state of the authorities (See paragraphs 10 to 13 supra) as well as the technical and social problems involved. As to the state of the authorities, uncertainty is the necessary consequence of the fact that the Privy Council in Commissioner for Railways v. Quinlan (Supra paragraph 12) condemned the reasoning in a number of decisions of the High Court of Australia, but was at pains to find reasons for defending the results on principles which the Privy Council regarded as established. This was something which could hardly be done, it is suggested with respect, without distorting the principles themselves and causing confusion about their application in future cases. The Victorian decision in Victorian Railway Commissioners v. Seal (Supra paragraph 13) - that "recklessness" included failing to remedy for the safety of subsequent foreseeable trespassers a defect in a lock on a turntable caused by trespassers - would have seemed inconceivable as an application of Robert Addie & Sons v. Dumbreck (Supra paragraph 10) which Quinlan’s Case maintains is still the fountain of the law, but at least derives some encouragement from the statement in Quinlan’s Case that recklessness is an expanding conception. The correctness of the Victorian decision must nevertheless still be regarded as in doubt in jurisdictions not bound by it, especially in view of the formulation of the duty to trespassers in terms appropriate to describe a duty to refrain from positive acts in the later Privy Council decision of Commissioner for Railways v. McDermott (Supra paragraph 13). In New South Wales the further question arises whether the Victorian Court's view of what will satisfy the requirement that there should be knowledge of the extreme likelihood of the presence of a trespasser can consist with the view of the New South Wales Full Court in Commissioner for Railways v. Ward ((1965) 82 W.N. (Pt. 2) 443). There Quinlan's Case was applied to deny a remedy when the defendant had actually been warned by the plaintiff that his cattle might be on the line only a few hours before. The ground was that some trains had passed in the intervening period without mishap. The uncertain state of the authorities in itself, in our tentative opinion, gives sufficient ground for clarifying legislative intervention.

50. In determining what form such legislative intervention should take, we consider that attention should be paid to the technical considerations to which Sir Owen Dixon referred in Transport Commissioners for N.S.W. v. Barton (Supra paragraph 11). In criticising the resort to the concept of recklessness to determine whether an occupier has broken a duty to a trespasser, Sir Owen Dixon said:

A disregard of the interests of a trespasser whom ex hypothesi the occupier knows is in proximity to danger [his Honour was accepting that Robert Addie & Sons Ltd. v. Dumbreck required this knowledge] must often appear to merit the description "reckless". But all attempts have failed in the past to fix upon a standard, an external standard at any rate, which requires less than due care in the circumstances and more than an abstention from intentional harm. I think that in relation to the persons and property of trespassers it will not be found possible to formulate an ascertainable standard of such a character (49 C.L.R. 114 at 131).

51. In resorting to this course we are rejecting the view to which the Privy Council gave some credence in Quinlan’s Case that the problems may be in a measure met by what we have called, following an American writer, the "reclassification of trespassers" (Supra paragraph 10). Thus Cardy’s Case in its result is defended by the Privy Council on the ground that the child might be considered to have been allured by the occupier through the attractions created in the railway yard and thus not a trespasser in the fullest sense but a kind of constructive licensee. To this approach we are inclined to think sufficient answer is that which Sir Owen Dixon gave in Cardy’s Case itself:

...the application of the rule [denying liability to trespassers in the absence of recklessness] is modified to the point of exclusion by inferring a licence from circumstances notwithstanding the unreality of the supposition that there was any actually consenting mind or will. The process of inference is then transmuted to a different and wider conception, that expressed by Lord Goddard, conduct on the part of the occupier of such a kind that he cannot be heard to say that he did not give a licence. At that point, by precluding the denial of a licence, the law has surely reached the use of fiction, and if now we boldly look at the facts which give rise to the imposition in this matter of the liability it will be but to complete the course of development by a process for which the history of the law furnishes many precedents....for want of some rationalization of the kind great confusion, not to say dissatisfaction, as to the state of the law exists. Is there any reason why in Australia the step should not be taken? ((1960) 104 C.L.R. 274 at 285).

52. In applying our proposals to the case of trespassers we recognise that we are taking issue with the view of the English Law Reform Committee, expressed in its report of 1953 and implemented in the English Act of 1957 in that the Act did not apply the provision for a common duty of care to the relationship between occupiers and trespassers (See Supra paragraph 4). The Committee's reasons for its views were stated as follows:

80. So far as adult trespassers are concerned, we think the law is satisfactory and we do not recommend any change. It has been suggested that the decision in Edwards v. Railway Executive (1952) A.C. 137 may bear harshly upon child trespassers in cases in which (on this view) common humanity demands that they should not be left without a remedy. The difficulty here is to evolve an exception in favour of child trespassers which would in practice give them any substantial degree of protection without imposing too heavy a burden upon occupiers of land used for perfectly legitimate purposes. Uses involving no danger to any rational adult may be fraught with peril to children. Adults can be warned off or kept out. Children ignore warning notices even if they can read them, creep through or climb over fences, and having done so, heedlessly involve themselves in any dangers, however obvious, the premises may afford. The majority of us are therefore satisfied that, as in the case of adult trespassers, no change should be made in the existing law. We should perhaps add that this view does not imply any disapproval of the decision in Lynch v. Nurdin ((1841) 1 Q.B.30).

53. In venturing to disagree with the English Committee we naturally derive some encouragement from the First Report of the Law Reform Committee for Scotland recommending that the rights of trespassers should depend on the general principles of negligence equally with the rights of lawful visitors, which recommendation was adopted in the Occupiers' Liability (Scotland) Act, 1960 (See supra paragraph 4). It is true that, as pointed out in the Scottish Committee's report ((1957) Cmd. 88 paragraph 5), in Scotland the "trespasser" is generally not a wrongdoer in the sense that he may be sued for damages, unless he causes damage. Hence there was less inducement in Scotland than in England to establish special rules for the relation of occupiers and trespassers and, before the House of Lords transported the English common law rules to Scotland in Addie's Case, the Committee points out that one of the only reasons - if not the only reason - why, in the normal case, a trespasser was in Scotland beyond the scope of any duty owed to him by the proprietor, was that the latter usually had no reason to suppose that people were invading his property behind his back. We do not consider that because the Scottish Committee's recommendation was made against the background of a different state of the law it is therefore without significance for our purposes. Rather we view that different state of the law as calling attention to a point made by an American writer in supporting the liberal approach to actions by trespassers in many jurisdictions in the United States. Professor Fleming James says:

Another reason advanced for the immunities of land occupiers is that the trespasser is a wrongdoer. Sometimes this is put in the form of contributory negligence, and a trespass under the circumstances of a given case may amount to contributory negligence, as where a man walks along a single-track railroad trestle. Where this is the case, his contributory negligence would be a factor to consider under the ordinary rules of negligence quite aside from the trespass. But the trespass is often given an effect over and above that accorded to contributory negligence. Moreover trespassing is not always or even usually negligent. The wrong it entails is the invasion of a property interest, not the subjection of oneself to unreasonable risk of harm. All in all, this aspect of trespass could not account for the traditional rule. If his wrong puts the trespasser beyond the pale of a duty of ordinary care, this is because he is treated as something of an outlaw who is not entitled to the benefit of rules requiring humane consideration for people generally. Perhaps landed gentry did once so regard the poacher in England. A trace of this attitude may still linger in the more emotional aspects of the notion that the useful exploitation of land should not be interfered with. But such an attitude finds little modern acceptance in our law. It seems especially inappropriate here in view of the relatively innocent character of many trespasses (Harper and James, 2 The Law of Torts (1956) 1438-39).

...there was one distinction which might be material to the present phase of the argument, viz. that in Twine’s Case the plaintiff was informed by the driver himself that he (the plaintiff) had no right to travel on the car, whereas in the present case the plaintiff was not told that, although in fact he had no such right. The plaintiff in Twine’s Case (supra) was not only a trespasser de facto, but he never imagined he was anything else. I am not sure that Mr. Shawcross's argument did not at times assume that he could not, in fact, be a trespasser unless he knew he was one. Of course, that assumption is unfounded in law (Id. at 273).

(g) Drafting Requirements for Legislation Permitting a Fresh Start

54. We envisage that the terms of a statute requiring the judge in a case to determine whether a duty of care existed in the circumstances, as proposed in paragraph 48 and supported by the considerations referred to in the subsequent paragraphs, would need to be general but, for the reasons we have given, flexible, avoiding the consequence that the duty question would have to be automatically determined in the affirmative whenever an occupier-entrant relationship arises. In our tentative opinion the statutory test consistent with the modern common law approach might be whether the entrant in all the existing circumstances was reasonably entitled to expect that the defendant occupier would as a reasonable man regulate or modify his conduct in respect of the protection of the entrant from the damage which he suffered. We are inclined to reject the alternative which might be immediately suggested by Bourhill v. Young (discussed Supra paragraph 45) of making the test for the judge whether the defendant occupier would as a reasonable man consider that the plaintiff would be endangered if he did not so regulate or modify his conduct. We are disposed to think that the second formulation of the test concentrates too much attention on the matter of foreseeability of harm. This was appropriately the dominant consideration for the court in the circumstances of Bourhill v. Young but other considerations as well seem appropriately prominent in occupiers' cases. Particularly in relation to trespassers, there may be cases where it would be proper to hold that a reasonable man would consider himself entitled to subject the entrant to whatever risk there was in order to carry on an activity free from interruption. The difficult and important questions of this sort should in our opinion be for the judge in order to ensure a degree of consistency in the handling of such questions from case to case.

55. As well as permitting judicial consideration of a proper range of factors in determining whether an occupier owes a duty to a trespasser, we conceive that the test we have suggested would permit a similar examination of the kinds of factors which have been claimed to represent what measure of justification there is for distinguishing the position of invitees from that of licensees. In a well-known article published in both the Minnesota Law Review ("Business Visitors and Invitees", (1942) 26 Minnesota L.R. 573) and the Canadian Bar Review ((1943) 20 Canadian Bar R. 446) Dean William L. Prosser of the University of California argued that later English cases, as distinct from some of the earliest, as well as a number of American decisions, had gone wrong in switching the emphasis from the fact of invitation to the business nature of the visit in determining whether a person was an invitee. The law began. Dean Prosser suggests - and in some places has persisted in the proper course - by drawing a sound distinction between on the one hand cases where there is an encouragement to enter under circumstances which carry an implied assurance of care taken to make the place safe for the purpose and on the other hand cases where, although entry is permitted, a reasonable man in the position of the entrant would not understand himself to be in receipt of such an assurance. We believe that this distinction would be thrust into prominence by the manner in which we have suggested that the general test of duty be framed, though not in such a sharp form as Prosser presents it. We consider there might be varying degrees of reasonable expectation in relation to different aspects of the premises or activities thereon and the formulation we have suggested would enable attention to be concentrated on the relevant aspects in the particular circumstances.

56. We have suggested in paragraph 48 (Supra) that where the judge holds that a duty exists it shall be an ordinary duty of reasonable care. It will be seen from paragraph 44 (Supra) that in the English Act the duty is elaborated as "a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there" (So also runs the New Zealand Act). It is not practicable to follow this precisely in view of its framing for the needs of lawful visitors only but we should wish to incorporate one of the objectives of the provision, which is to reverse the effect of the decision in London Graving Dock Co. Ltd. v. Horton (Discussed supra paragraphs 4 and 15) so that under the statute notice to an entrant of a danger is insufficient if this would not offer the entrant proper protection. We believe that this is a desirable step, on grounds including one which emerges from the cases themselves, that the courts in practice avoid the effect of the requirement by either interpreting the requirement of knowledge so strictly that the rule in the case becomes illusory or by holding further that because the requirement is illusory because of the strictness with which the requirement of knowledge can be interpreted, therefore the rule in the case is not binding and need not be applied (See supra paragraph 16). But apart from the rule's ineffectiveness, it seems undesirable, for it has been pointed out that we simply cannot go about life without constantly running into dangers which others have unreasonably put up to us, even if we are aware of their existence (Harper and James, 2 Law of Torts (1956) 1497). Hence information of danger is sometimes insufficient protection even for those who act with all proper care and may be less than could reasonably be expected. The Scottish provision (Quoted paragraph 44 supra) is closer to our needs than the English since it, too, aims to avoid the effect of Horton’s Case and moreover is de-signed to apply to trespassers as well as lawful visitors. We would propose a modified form of it to the effect that where a duty (that is, a duty of the kind referred to in paragraph 54 supra) exists, it shall be a duty to exercise such care as in all the circumstances of the case can be reasonably expected of the occupier in respect of the protection of the entrant from the damage which he suffered. The main modification of the Scottish provision involved in this formulation is that our suggestion seeks to avoid any hint of an implication that wherever the occupier comes under any duty at all it is a duty to use his best efforts to do whatever is necessary to ensure the plaintiff's safety. This would obviously be unreasonable in some circumstances, where all that, for example, a trespasser could reasonably expect would be such restriction of the danger as was consistent with the defendant carrying on necessary activity without serious interruption. Hence we prefer not to include the words "to see that the person will not suffer injury or damage" which appear in the Scottish definition.

(h) Scope of Application of Proposed Provisions

57. It will be necessary to include in any legislation which may adopt the provisions proposed in the preceding paragraph, some definition of the scope within which they are to operate. This is necessary in the first place to make it as clear as possible whether the provisions are intended to apply to duties in regard to the state of the premises only and, if not, how far they are also intended to apply to acts of the occupier himself, or his servants or agents, or persons he has permitted to be on the property, or even trespassers whom he has not controlled, or outsiders who are creating hazards for those on the property by something done outside it. The distinction between static states and activities on the premises has been forced into prominence by the effort to confine the exclusive application of the unsatisfactory occupiers 1 rules presently existing as narrowly as possible. We have seen that it has been suggested that the result is confusion (Supra paragraph 7). It seems that the various Occupiers' Liability Acts from which we may seek guidance have been of varying effectiveness in eliminating confusion by the provision they make on the present matter. Under the English legislation the hazards to which the provisions of the Act apply are "dangers due to the state of the premises or to things done or omitted to be done on them" (Section 1(1) quoted in full in paragraph 14 supra). The description of the dangers is the same in the New Zealand Act but the Act provides that it is to regulate the duties which an occupier of premises owes in respect of such dangers in his capacity of occupier. The New Zealand Secretary of Justice advises us that it was believed in New Zealand that this was the intention of the English Act but the altered wording was inserted because of doubts whether the words of the English Act were appropriate to give effect to the intention (Section 3(1)). The relevant Scottish provision reads:

1(1) The provisions of the next following section of this Act shall have effect, in place of the rules of the common law, for the purpose of determining the care which a person occupying or having control of land (in this Act referred to as an "occupier of premises") is required by reason of such occupation or control, to show towards persons entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which he is in law responsible.

58. In framing our proposals to deal with this matter we are guided by the consideration that the prominence of the distinction between static states and activities is due to the vexed history of this branch of the law rather than any significance in the distinction for the purpose of doing justice. It seems that the matter might be of small importance in any case once the duty resting on an occupier in respect of matters formerly the subject of the "category" rules becomes one of reasonable care, for the practical result is likely to be the same whether the duty in a marginal case is derived from the proposed Act or from some independent common law principle. But in any case so long as the present procedure in New South Wales remains, any uncertainty about the source of the defendant's obligations may be reflected in disputes concerning proper counts in the declaration. In these circumstances we think we should give effect to our view of the singleness of the substantial sources of the obligation to take care whether in respect of the condition of the premises or the acts of others where the use of the premises will be affected, and frame the legislation to cover both. Frequently the distinction between a state of the premises and an activity depends only on the point of time when the intervention by the occupier or a third party in the situation took place and, as has been said, "the relative point in time when the occupier's activity took place is only one among varying circumstances, and is entitled to great weight in some circumstances and little in others" (Harper and James, 2 Law of Torts 1462). We think the limitation to the scope of the proposed statute in the present respect should be that it should deal only with the subject of duties owed to an entrant by an occupier in which the fact of occupation is the circumstance giving rise to the obligation and that its breach may cause the entrant damage in the use of the premises. We would in the latter respect be seeking to follow the line of distinction suggested by Sir Alan Taylor in Commissioner for Railways v. Hooper ((1954) 89 C.L.R. 8) which we have already described (Supra paragraph 8). We do not as at present advised propose to limit the application of the legislation to acts, whether of the occupier himself or others, done or omitted on the land. Suppose an occupier is warned of an approaching bush fire and he fails to warn a visitor due at his home. It would seem quite artificial either to deny that a duty arose under the Act because the danger was not due to a state of his premises and nothing was done or omitted by the occupier on the land, or to make the matter depend oh whether the telephone from which he could have warned the caller was on his land or a public telephone in the street. In this respect we would think it desirable to depart from all three Occupiers' Liability Acts at present in force.

59. The English Act (By s.1(1) quoted supra paragraph 14), the New Zealand Act (By s.3(1) which is in similar terms to s.1(1) of the English Act) and the Scottish Act (By s.1(1) quoted supra paragraph 57) all enact in the sections determining the scope of operation of the main provisions of the legislation that those provisions are to apply in place of the rules of the common law. Although this may be strictly unnecessary as the provisions of an Act would normally have this effect, emphasis on this aspect seems nevertheless desirable. We would propose to provide that the provisions of the legislation as to the existence and character of the duties of an occupier should apply "in any proceedings, notwithstanding any rule of the common law applying to the relationship of occupiers and entrants and having a different effect".

60. Our objective of permitting reconsideration by the judges of the circumstances when a duty arises will require modification in the proposed New South Wales legislation of the English legislation which confirms the existing common law tests of the relationships between occupiers and entrants which it assumes will give rise to a duty (apparently ipso facto) of some kind at common law. The English provision is:

1(2). The rules so enacted shall regulate the nature of the duty imposed by law in consequence of a person's occupation or control of premises and of any invitation or permission he gives (or is to be treated as giving) to another to enter or use the premises, but they shall not alter the rules of the common law as to the persons on whom a duty is so imposed or to whom it is owed; and accordingly for the purposes of the rules so enacted the persons who are to be treated as an occupier and as his visitors are the same [subject to special provision regarding certain persons with rights of access] as the persons who would at common law be treated as an occupier and as his invitees and licensees.

61. All three overseas Occupiers' Liability Acts which we have mentioned contain provision for extending the operation of their main operative provisions beyond premises in the ordinary sense to apply also to "structures" and beyond injury to the person of entrants to the case of damage to property, including the property of persons not themselves entrants on the land (s.1(3) of the English Occupiers' Liability Act, 1957; s.3(3) of the New Zealand Occupiers' Liability Act, 1962; s.1(3) of the Occupiers' Liability (Scotland Act, 1960). These provisions follow identical lines and, since the Scottish Act is not confined to relationships of the occupier with lawful visitors, it is most closely adapted to our purposes. It reads:

Those provisions shall apply, in like manner and to the same extent as they do in relation to an occupier of premises and to persons entering thereon, -
(a) in relation to a person occupying or having control of any fixed or moveable structure. Including any vessel, vehicle or aircraft, and to persons entering thereon; and

(b) in relation to an occupier of premises or a person occupying or having control of any such structure and to property thereon, including the property of persons who have not themselves entered on the premises or structure.

62. We are not disposed as at present advised to provide in the proposed legislation any interpretation of the word "damage" in the section of the proposed legislation dealing with the existence and character of the duty as it would apply to property by reason of the provision suggested in the preceding paragraph. It appears from the authorities referred to in paragraph 34 (Supra) that the special occupiers' liability rules do not apply to the case of failing to guard against loss by theft and that generally there is no liability. Criticism of this position is rather to be considered as dissatisfaction with the present rules rather than doubts about what the present law is. The criticisms in any case are directed against the purported application of the general principles of negligence to withhold a remedy and the proposed legislation would not be designed to deal with matters which at present are unaffected by the special occupiers' rules. Apart from the question of loss of property through theft, the extent of the expression "damage" in relation to property may also come into issue when the plaintiff seeks to recover financial loss. In discussing this question under the English Act in A.M.F. International Ltd. v. Magnet Bowling Ltd. ((1968) 2 All E.R. 789) Mr. Justice Mocatta asked (At p.807) whether if a visitor brought on to premises a car used for hiring out and it was damaged by a falling wall the visitor could recover the loss of his hiring fees. He answered this question in the affirmative, but we would respectfully suggest that this is not a question which in any case should have arisen in the present context, being properly a question of the measure of the damage to the car. We consider that any questions of the recoverability of the financial results of physical damage to property should be disposed of on ordinary principles of measure of damage and remoteness of damage, and we think it so clear that this would be regarded as the proper course by the judges that no clarificatory provision is required. Where financial harm is not accompanied by personal injury or damage to physical property, Mr. Justice Mocatta says that "financial loss is apparently irrecoverable, except in the rare cases to which the principle in Hedley Byrne & Co. v. Heller & Partners Ltd. applies". Whether or not this is an apt description of the application of the Hedley Byrne Case since the decision of the High Court of Australia in Mutual Life and Citizens Assurance Co. Ltd, v. Evatt, at any rate his Lordship's proposition means that the common law occupiers' liability rules do not deal with such a situation. Accepting this, we do not consider it necessary to substitute a form of expression which would cover financial harm for the expression "damage".

(i) Elaboration of What is Reasonable Care

63. The English and New Zealand Acts, by contrast to the Scottish Act which contains nothing of the sort, have provisions by way of elaboration and exemplification of what amounts to reasonable care by occupiers for entrants or is relevant to reasonable care in particular aspects or circumstances. In the English Act it is laid down:

2.(3) The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases -
(a) an occupier must be prepared for children to be less careful than adults; and

(b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.

2.(4) In determining whether the occupier of premises has discharged the common duty of care to a visitor regard is to be had to all the circumstances, so that (for example) -
(a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and

(b) where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.

The circumstances referred to in [the paragraphs specifying that whether care is required to be taken and the amount of care to be taken depends on what is reasonable in all the circumstances] shall include those relevant to the consideration that in proper cases an occupier may expect that a person in the exercise of his calling will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.

(j) Liability for Independent Contractors

64. The provisions of s. 2(4)(b) of the English Act quoted in the preceding paragraph of their own force make (or by spelling out implications of the subsection defining the common duty of care, call attention to) considerable inroads on the common law with regard to the liability of occupiers for the acts of independent contractors. We put the matter in these alternative ways because it has been argued that, although as we have seen the Scottish Act does not contain this provision, the effect is nevertheless the same as that of the English Act since it would be inconsistent with the requirement that the duty shall be one of reasonable care to impose in any circumstances a duty of insurance of entrants against the negligence of an independent contractor when the occupier did not fail in selection or supervision (D.M. Walker, 2 Law of Delict in Scotland (1966) 601). In any event, the effect in England is to remove any suggestion which might continue to be based on Thomson v. Cremin that an occupier is generally liable to an invitee for the negligence of an independent contractor (See the discussion in paragraph 20 supra) even where there is no negligence in selection or supervision. The English Act also alters the law laid down by Francis v. Cockrell that there is general liability to contractual entrants for the negligence of independent contractors where the use of the premises is the main purpose of the contract (Discussed supra paragraph 21). It thereby disposes of the difficulty of distinguishing such cases from those where a lesser duty has been owed because the use of the premises is only ancillary to the use of the contract, since now there will be no difference in the duties owed. Further, it may prevent the recognition in England of the duty recognized by the High Court of Australia in Voli v. Inalewood Shire Council - namely, a duty stricter than ordinary reasonable care in relation to premises the subject of short term hirings (Discussed supra paragraphs 23 and 24). Since in Australia the controversy surrounding Thomson v. Cremin is still alive (Supra paragraph 20) it will be desirable to clarify this matter and it seems incumbent on us to choose between the lesser duty of the English Act and the severer one laid down by the High Court in respect of the circumstances with which Voli’s Case dealt. In our tentative opinion it would be appropriate to follow generally the English solution in relation to the ordinary occupier-visitor relationships (including persons entering private premises under a contract with no express provision on the present matter) so that no liability is imposed on the occupier for the negligence of the independent contractor except where his own negligence was also involved, but to save the principle relating to the provision of premises for the use of the public as developed in Voli’s Case. In the former situation since a private occupier will often be involved the limited duty of insurance may operate harshly whereas in the latter case an entrepreneurial defendant may be expected to be involved. We would seek to frame the legislative provision in this respect in such a way as not to conclude the point left open in Voli’s Case in relation to premises made available to the public without consideration passing. Provision along the following lines might be appropriate:

(1) Nothing in this Act shall affect the duties at common law of persons making premises available from time to time for public or limited use for short periods.

(2) [Subject to other provisions] it is declared that where damage to an entrant is due to the negligence of an independent contractor employed by an occupier of premises, the occupier shall not on that account be answerable for the damage if he exercised whatever care was reasonable in the selection and supervision of the independent contractor.

Counsel for A.M.F. submitted, first, that, unless someone who was sued under the Act as an occupier could bring himself within s.2(4)(b), it was of no avail to him to establish that he had employed a qualified independent contractor and that the latter had been negligent. In particular in support of this argument he relied on the words of s.2(4)(b) "the occupier is not to be treated without more as answerable for the danger" etc.... It seems to me there is great weight in this argument, at least in cases to which the opening words of s.2(4)(b) apply, namely, "where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair" and I accept it (Id. at 801-802).

(k) Persons Entering As of Right

66. The exclusion of the case of short term hirings etc. of premises to the public leads on to the question whether a further exception should be made in respect of cases where plaintiffs enter as of right. Apart from the case where the person enters as of right in pursuance of a duty, for example, a policeman, the premises on which people enter as of right are likely to be public premises, that is the right is likely to be that of the public generally, and to this extent the same considerations apply - that is, the possibilities of injury from a defect are greatly multiplied - as in the cases with which the Voli Case deals. On the other hand, the considerations which appealed to Sir Gordon Wallace against imposing a strict duty in the case of natural reserves seem conclusive (See the passage quoted in paragraph 26 supra). The question remains whether in the case of artificial constructions some limited strict liability should be imposed, as conceivably suggested by some High Court authority. In view of the fact that artificial constructions may themselves be of very differing characters varying from a few sticks damming the earth into steps on a bush path to elaborate buildings, we are inclined to take the view that the se should not be excluded from the general provisions of the proposed legislation, with the result that the ordinary principles of negligence would apply. This would seem to be equally appropriate in the case of persons entering as of right on private premises where the circumstances are likely to differ widely and require individual consideration (See paragraph 28 supra).

67. We do not regard consideration of the rule absolving highway authorities from liability in respect of the state of the highway in the absence of misfeasance (See paragraph 29 supra) as within our present terms of reference. This is clearly a matter involving special policy considerations in view of the implications for the finances of public and local authorities. In England the matter is not dealt with by the Occupiers' Liability Act, but by separate legislation, the Highways (Miscellaneous Provisions) Act, 1961. This Act by s.1(1) abrogates the rule of law exempting highway authorities from liability for non-repair of highways. We propose to make it clear that nothing in the legislation we suggest affects the rule.

68. Distinct from the situation affecting public highways is the position of an entrant on private property either under a right comprised in a public right of way or under a right in the nature of a servitude such as a right of way or other easement or a profit. The position of such entrants under the English legislation is apparently a matter of speculation. For the purposes of the main operative section of the Act it is provided that "persons who enter premises for any purpose in the exercise of aright conferred by law are to be treated as permitted by the occupier to be there for that purpose, whether they in fact have his permission or not" (Section 2(b); New Zealand Act s.4(9)). Whether persons in the categories considered come within this concept, or whether their position is to be distinguished from that of, for example, police and fireman, whom the subsection would clearly cover, on the ground that their rights have their origin in an act of a private person as distinct from the general law, is not made clear. Professor Harry Street suggests that those exercising a public right of way would be unaffected by the Act since the surface of the area of a public right of way is not to be thought of as controlled by the occupier of the subsoil, but he suggests that the immunity of the occupier with respect to private rights of way has been altered by the section we have quoted (Law of Torts (3 ed. 1963) 189). Both arguments seem tenuous. In our own proposed legislation the position of such entrants would appear to be prima facie covered by the general provisions we have suggested, unlike the English legislation where the necessity of s.2(6) arose from the limitation of the Act's general provisions to invitees and licensees. We do not, however, wish to attach new incidents to rights in the nature of servitudes nor to public rights of way, insofar as they have not been treated as within the ordinary sphere of occupiers' liabilities. To deal both with the position of the highway authority and the occupier whose property is subject to one of these jura in re aliena we propose provision along the following lines:

Nothing in this Act shall be construed to affect the law relating to liability of a highway authority for the state of a highway nor to attach new incidents to the rights given by easements or profits or public rights of way.

Nothing in the foregoing subsection [the main operative sub-section of the Act] shall relieve an occupier of premises of any duty to show in any particular case any higher standard of care which in that case is incumbent on him by virtue of any enactment or rule of law imposing special standards of care on particular classes of persons.

(l) Persons Entering Under Contract

70. All three overseas Acts which we have mentioned modify their principal provision for the existence of the common duty of care by a saving. In the Scottish Act it reads (s.2(1)) "except in so far as he [the occupier] is entitled to and does extend, restrict, modify or exclude by agreement his obligations towards that person [the entrant]". In the English and New Zealand Acts the wording of the saving is similar (apart from the limitation to lawful visitors) except that the restriction, modification or exclusion, where the occupier is free to make it, may be by agreement or otherwise (Italics supplied - English Act s.2(1); New Zealand Act s.4(1)). The Scottish Act rests content with this provision for the contractual entrant, who for the rest is left to be entitled to the common duty of care like all other entrants on the property. The English (s.5) and New Zealand (s.7) Acts on the other hand make further specific provision for the contractual entrant along lines similar to one another but not identical. In the English Act the provision reads:

s.5(1) Where persons enter or use, or bring or send goods to, any premises in exercise of a right conferred by contract with a person occupying or having control of the premises, the duty he owes them in respect of dangers due to the state of the premises or things done or omitted to be done on them, in so far as the duty depends on a term to be implied in the contract by reason of its conferring of that right, shall be the common duty of care.

(2) The foregoing subsection shall apply to fixed and moveable structures as it applies to premises.

(3) This section does not affect the obligations imposed on a person by or by virtue of any contract for the hire of, or for the carriage for reward of persons or goods in, any vehicle, vessel aircraft or other means of transport, or by virtue of any contract of bailment.

(4) This section does not apply to contracts entered into before the commencement of the Act.

(1) Subject to subsection (2) of this section an occupier may extend, restrict, modify or exclude by agreement or otherwise the duties imposed by this Act so far as he is entitled by law to do so.

(2) The liabilities in tort imposed by this Act on an occupier shall not be extended, restricted, modified, excluded or confirmed by contract unless

(a) the contract makes express provision to that effect; or

(b) the contract makes implied provision to that effect and it appears from the express terms of the contract or from the circumstances in which the contract was made that the parties directed their minds to the matter and intended to agree on the provision.

71. Both the English and New Zealand Acts (though not the Scottish) contain extensive provision determining the position of third parties to a contract (English s.3, New Zealand s.5). They differ from one another virtually only in what appear to be matters of drafting. The English version is:

3(1). Where an occupier of premises is bound by contract to permit persons who are strangers to the contract to enter or use the premises, the duty of care which he owes to them as his visitors cannot be excluded or restricted by that contract, but (subject to any provision of the contract to the contrary) shall include the duty to perform his obligations under the contract, whether undertaken for their protection or not, in so far as those obligations go beyond the obligations otherwise involved in that duty.

(2) A contract shall not by virtue of this section have the effect, unless it expressly so provides, of making an occupier who has taken all reasonable care answerable to strangers to the contract for dangers due to the faulty execution of any work of construction, maintenance or repair or other like operation by persons other than himself, his servants and persons acting under his direction and control.

(3) In this section "stranger to the contract" means a person not for the time being entitled to the benefit of the contract as a party to it or as the successor by assignment or otherwise of a party to it, and accordingly includes a party to the contract who has ceased to be so entitled.

(4) Where by the terms or conditions governing any tenancy (including a statutory tenancy which does not in law amount to a tenancy) either the landlord or the tenant is bound, though not by contract, to permit persons to enter or use premises of which he is the occupier, this section shall apply as if the tenancy were a contract between the landlord and the tenant.

(5) This section, in so far as it prevents the common duty of care from being restricted or excluded, applies to contracts entered into and tenancies created before the commencement of this Act, as well as those entered into or created after its commencement, but, in so far as it enlarges the duty owed by an occupier beyond the common duty of care, it shall have effect only in relation to obligations which are undertaken after that commencement.

(n) Liability of Landlords

72. All three overseas Occupiers' Liability Acts contain provisions designed to impose on landlords who have an obligation to enter and repair premises the same liabilities to entrants for disrepair, or in respect of goods brought on the premises as would exist if the landlord was an occupier of the premises (English Act s.4, Scottish Act s.3, New Zealand Act s.8). The object of these provisions is to extend the range of persons in whose favour the obligations exist beyond those to whom they are owed under the lease or other source of the obligation (See supra paragraph 37). In New South Wales there is no need for such extension in cases to which the principle of Voli v. Inglewood Shire Council (Supra paragraph 22) applies. To make recommendations for other cases would not strictly be within our terms of reference and the fairness of any considerable extension in the obligations of landlords could only be determined by investigations of the situation of such persons in New South Wales which have not been called for under the present reference. However, the chief object of the overseas provisions is only to prevent the multiplicity of actions which arise when an entrant sues the occupier for damage suffered through disrepair of the premises and the occupier in turn sues his landlord for the damages he has had to pay as damage to him arising from the landlord's breach of covenant. In general, the only effect of the introduction of the overseas provisions would be to substitute direct action by the entrant against the landlord for this roundabout process. Only in the case of personal injury to the wife of the occupier would the section apparently extend the quantum of the landlord's obligation, since at present the wife is unable to sue her husband in these circumstances and therefore the husband cannot show damages in this respect in an action for breach of covenant against the landlord. We therefore think it appropriate to call attention to the terms of the English legislation:

4.-(1) Where premises are occupied by any person under a tenancy which puts on the landlord an obligation to that person for the maintenance or repair of the premises, the landlord shall owe to all persons who or whose goods may from time to time be lawfully on the premises the same duty, in respect of dangers arising from any default by him in carrying out that obligation, as if he were an occupier of the premises and those persons or their goods were there by his invitation or permission (but without any contract).

(2) Where premises are occupied under a sub-tenancy, the foregoing subsection shall apply to any landlord of the premises (whether the immediate or a superior landlord) on whom an obligation to the occupier for the maintenance or repair of the premises is put by the sub-tenancy, and for that purpose any obligation to the occupier which the sub-tenancy puts on a mesne landlord of the premises, or is treated by virtue of this provision as putting on a mesne landlord, shall be treated as put by it also on any landlord on whom the mesne landlord's tenancy puts the like obligation towards the mesne landlord.

(3) For the purposes of this section, where premises comprised in a tenancy (whether occupied under that tenancy or under a sub-tenancy) are put to a use not permitted by the tenancy, and the landlord of whom they are held under the tenancy is not debarred by his acquiescence or otherwise from objecting or from enforcing his objection, then no persons or goods whose presence on the premises is due solely to that use of the premises shall be deemed to be lawfully on the premises as regards that landlord or any superior landlord of the premises, whether or not they are lawfully there as regards an inferior landlord.

(4) For the purposes of this section, a landlord shall not be deemed to have made default in carrying out any obligation to the occupier of the premises unless his default is such as to be actionable at the suit of the occupier or, in the case of a superior landlord whose actual obligation is to an inferior landlord, his default in carrying out that obligation is actionable at the suit of the inferior landlord.

(5) This section shall not put a landlord of premises under a greater duty than the occupier to persons who or whose goods are lawfully on the premises by reason only of the exercise of a right of way or of rights conferred by virtue of an access agreement or order under the National Parks and Access to the Countryside Act, 1949.

(6) Nothing in this section shall relieve a landlord of any duty which he is under apart from this section.

(7) For the purposes of this section, obligations imposed by any enactment in virtue of a tenancy shall be treated as imposed by the tenancy, and "tenancy" includes a statutory tenancy which does not in law amount to a tenancy, and includes also any contract conferring a right of occupation, and "landlord" shall be construed accordingly.

(8) This section applies to tenancies created before the commencement of this Act, as well as to those created after its commencement.

73. All three overseas Acts contain provision to preserve the defence of assumption of risk against any implication to the contrary in the establishment of the common duty of care in the Act (English Act, s.2(5); Scottish Act, s.2(3); New Zealand Act, s.4(7)). The Scottish provision, which is similar to the English, and, in referring to the mode of determination, contains matter omitted from the New Zealand Act, reads:

Nothing in the foregoing provisions of this Act [which are the main operative provisions] shall be held to impose on an occupier any obligation to a person entering on his premises in respect of risks which that person has willingly accepted as his; and any question whether a risk was so accepted shall be decided on the same principles as in other cases in which one person owes to another a duty to show care.

(p) Contributory Negligence

74. We have observed (Supra paragraph 19) that Mr. Justice Willes' formulation of the occupier's duty of care to an invitee was expressed as if the invitee had to qualify for the right to receive the care laid down by using reasonable care for his own safety (See the passage quoted in paragraph 2 supra and the discussion of this aspect in paragraph 19 supra). We have also seen, however, that there is some authority that any impression to this effect which might be gained from Mr. Justice Willes’ language is wrong and that the provisions of the contributory negligence legislation for apportionment apply to the case where both occupier and invitee have been negligent (Supra paragraph 19). Writing before the decisions we have cited on the subject were handed down. Professor Douglas Payne expressed surprise that the position of this matter under the English Occupiers' Liability Act had not been clarified (The Occupiers' Liability Act (1958) 21 Modern L.R. 359, 366-7). Whether or not as a result of this comment, the New Zealand Act does contain a provision making it clear that the apportionment provisions apply (Quoted supra paragraph 19). If a similar provision were included in our proposed legislation it would read somewhat as follows:

Where the occupier breaks a duty of care to an entrant, and the entrant suffers damage as a result partly of that fault and partly of his own fault, the provisions of Part III of the Law Reform (Miscellaneous Provisions) Act, 1965 shall apply.

(q) Summary - The State of the Law

75 (i) Because of the early development of the law relating to the duties of an occupier of land to various classes of entrants, they have become subject in English law to rigid definitions imposing strict limits on their scope. Although usually regarded as manifestations of general principles of negligence, they have not been subjected to the continual process of reassessment in the light of general principle which has taken place in other fields. Dissatisfaction with this situation has led to legislation to bring the matter in varying degrees into closer relationship with the general law of negligence in England, Scotland and New Zealand.

(ii) The development of the common law in New South Wales has followed the general pattern just described. The failure of the occupier's duties accurately to reflect the general principles of negligence has resulted here as elsewhere in attempts by plaintiffs to appeal directly to those principles. Under the present New South Wales system of pleading this reflects itself in controversies as to when a count so doing may be included as well as, or instead of, a count alleging a breach of an occupier's ordinary duty. The differences between the content of the occupiers' duties and those of duties of care deriving from other relationships have also led to attempts to find other relationships superimposed on the occupier-entrant relationship wherever possible. In New South Wales these attempts, too, are reflected in pleading difficulties.

(iii) Although the judgments of the Privy Council have upheld the legitimacy of finding duties of care imposed on occupiers in favour of lawful entrants by by-passing the occupier-entrant relationships with their associated limited duties in favour of superimposed relationships where there are sufficiently independent features of the situation to render this plausible, nevertheless the refusal of the Privy Council to permit any similar procedure where trespassers are involved has thrown the Australian authorities into confusion and unsettled the law in New South Wales as in other Australian states. Liability to a trespasser now generally has to be determined by reference to the vague criterion of whether the occupier showed recklessness for his safety.

(iv) By contrast to its unsatisfactory treatment of trespassers, in one matter the common law has worked in trouble-free fashion, namely in its delineation of the concept of an occupier as a person having a degree of control over property not necessarily amounting to possession for the purposes of the law of property. In this matter Australian decisions appear to have anticipated the English view, which itself is preserved under the legislation to which we have referred. Evidently this concept has proved a satisfactory point of attachment for the main duties connected with the management of property.

(v) The common law duty of an occupier to an invitee appears to have caused dissatisfaction to the extent that elements in its early formulation, justifiably or unjustifiably, have been interpreted to involve departures from what might be considered an ordinary duty of reasonable care, and to the extent to which uncertainty still persists as to whether elements in the formulation involve such a departure. An example of an element involving such a departure is the rule that the knowledge of an invitee of a danger debars his action in respect of it, though this rule, once adopted as involved in the interpretation of the duty, was itself whittled down by interpretation so as to become virtually illusory. An example of an element in the duty with a continuing periphery of uncertainty is the requirement that the danger must be unusual, and questions may also still be raised about the interpretation of the statement that the duty is owed to an invitee who is exercising reasonable care for his own safety. A further source of uncertainty exists in the state of the authorities concerning an occupier's liability to an invitee in respect of the negligence of an independent contractor.

(vi) The occupier's duty to persons entering premises under contract where no express term covers the matter varies according to whether the use of the premises is the main purpose of the contract, in which case the duty is to see that the premises are as safe as reasonable care and skill can make them, or is ancillary to it, in which case the duty corresponds to that to an invitee. The application of the distinction in practice is a source of difficulty. Australian authority applies the higher measure of duty, in favour of persons entering under a hiring of premises which are made available for public hiring, even if the entrant himself is not in contractual privity with the occupier. This decision must raise questions about whether the rules regarding persons entering under contract really belong to the law of contract or the law of tort.

(vii) In Australia persons entering premises as of right have been accorded a higher status against the occupier than in England, where entrants, for example, upon public parks, have been treated as licensees, in New South Wales such persons have been put in a position similar to that of invitees and the question has been reserved whether in some circumstances such entrants may be owed a higher measure of duty.

(viii) In New South Wales courts have evidenced reluctance to restrict the duty owed to a licensee, or visitor gratuitously permitted on property, to a duty to warn only of concealed traps known to the occupier. Courts have avoided the rule, once they accepted it, by finding shadows of material interest to the occupier in the visitor's presence where possible, or by bypassing the rule whenever a relationship independent of that between occupier and licensee could be detected. Nevertheless the continuance of the rule in circumstances where it is obviously felt to be out of touch with the general law is a source of difficulty.

(ix) In New South Wales the courts have accepted the proposition, contested by some but assumed to be the law by the framers of the English Occupiers' Liability Act, that the occupiers' liability rules apply to the case of damage to property brought on land as well as to injury to the person of entrants. The practice is also well established in this State of treating movable property on which people may enter as premises for the purpose of application of the occupiers' liability rules.

(x) The immunity of occupiers, to the extent that this arises from limitations on their duties to entrants as compared with ordinary duties of care, is not matched by immunities of others than the occupier who may do work on the property, under English authority applicable in New South Wales. This is so, by contrast to American law, even where the person is employed by the occupier to do the work. This holding seems evidence of a desire to restrict the operation of rules not thought appropriate to modern conditions, within their narrowest limits.

(xi) With some exceptions, the lesser of premises at common law owes no duty of care either with regard to conditions of the premises at the time of letting or which are allowed to develop during it. Vendors and speculative builders, as distinct from builders under contract, enjoy a similar immunity.

(xii) At common law, except vis-a-vis persons entering as of right, an occupier may vary his obligations, by contract with entrants, or by imposing conditions regarding his obligations by appropriate means on their licence to enter.

(r) Summary - Proposals

76 (i) There has been widespread dissatisfaction with the results produced by the formalistic occupiers' liability rules, though this has not been universal, some arguing that definite rules are more likely to assist the objective of certainty in the law and prevent litigation. However, predictions that the departure from them in the Occupiers' Liability Act in England would lead to increased litigation have not been justified, the reverse having in fact happened. The experience in Scotland and New Zealand has apparently been the same. Another argument in favour of the present rules which can be advanced is that the present rules restrict the functions of the jury, and that to throw the broad question of reasonable care open as a question of fact as the English Act does would give too much discretion to that body - a problem which does not arise in England where the judge is the tribunal of fact.

(ii) Some writers frankly recognise that to leave the question of reasonable care to the jury at large would go some distance in practical effect towards making the occupier an insurer of entrants' safety and they welcome this result. We do not, however, consider an absolute liability desirable at present especially since there are many private occupiers who do not have their liability insured.

(iii) Nor, in view of the considerations referred to in (i) above, do we consider it desirable in New South Wales conditions to institute a general duty to exercise reasonable care for all lawful entrants, as is the practical effect of the English and New Zealand legislation, or for all entrants lawful or otherwise, as is the practical effect of the Scottish legislation.

(iv) We tentatively propose that legislation should be introduced which firstly lays down and places emphasis upon the duty of the judge to determine whether there is a duty to exercise care in the individual case on modern principles of negligence and secondly lays down that, where such a duty is determined to exist, it shall be a duty of reasonable care.

(v) We would propose to apply this approach to the occupier's relations with trespassers as well as lawful visitors, since we regard the present uncertainties as confirmation of Sir Owen Dixon's view that no half-way house can be found between liability only for intentional harm and liability in appropriate circumstances for failure to exercise reasonable care. Such a half-way house is what the present law regarding liability for recklessness appears to attempt.

(vi) We believe that the approach we have suggested is a solution preferable to that whereby courts have on occasions mitigated the harshness of the law towards trespassers by fictionally treating trespassers as licensees.

(vii) We consider that in considering the position of trespassers, weight must be given to the fact that many trespasses are comparatively innocent and trespass may even occur through reasonable mistake.

(viii) We are inclined to propose as the legislative test to be applied by the judge for the determination of the existence of the duty in each case: was the entrant in all the existing circumstances reasonably entitled to expect that the occupier would as a reasonable man regulate or modify his conduct in respect of the protection of the entrant from the damage which he suffered?

(ix) We are disposed to believe that in addition to permitting judicial consideration of a proper range of factors in determining whether an occupier owed a duty to a trespasser the above formulation would permit consideration of the kind of question which has been claimed to lie behind what measure of justification there is for drawing some distinction between at any rate some invitees and some licensees, namely the question: would a reasonable man in the position of the entrant consider that he was invited or encouraged to enter under circumstances carrying an implied assurance of care taken to make the premises safe?

(x) Where a duty exists we propose that the test of its discharge shall be whether the occupier has exercised such care as in all the circumstances of the case could be reasonably expected of him in respect of the protection of the entrant from the damage complained of. By this formulation we would hope, inter alia, both to escape the common law rule that full knowledge of the danger on the part of the plaintiff is always a good defence and to escape from a certain suggestion in the overseas occupiers' liability legislation that reasonable care involves doing all in one's power to make the entrant safe.

(xi) We propose to make the scope of the proposed legislation wide enough to cover both damage caused by the state of the premises and acts or omissions of the occupier, or of others for which he may be responsible, where occupancy is the source of the defendant's obligation and its breach such as to cause damage in the use of the premises.

(xii) We propose to preserve the common law meaning of the expression "occupier".

(xiii) We propose to adopt the type of provision in the overseas occupiers' liability legislation extending the principles adopted by the proposed legislation to apply (a) to damage to property brought on premises (b) to entry on fixed or movable structures under a person's control.

(xiv) We propose to adopt one of the provisions of the English legislation elaborating what is relevant to reasonable care in a particular set of circumstances, namely the provision that in a proper case an occupier may expect that a person in the exercise of his calling will appreciate and guard against any special risks ordinarily incidental to it, so far as the occupier leaves him free to do so.

(xv) We propose to clarify the liability of an occupier for an independent contractor by recommending provision firstly that nothing in the proposed legislation shall affect the duties at common law of persons making premises available for public use for short periods at a time but secondly (and without prejudice, inter alia, to the above) that where damage to an entrant is due to the negligence of an independent contractor employed by an occupier of premises, the occupier shall not on that account be answerable for the damage if he exercised whatever care was reasonable in the selection and supervision of the independent contractor.

(xvi) We do not propose to make any provision excluding persons entering as of right on premises from the provisions of the proposed legislation, except to exclude from its operation altogether the position of highway authorities, and to provide that nothing in the proposed legislation should attach new incidents to easements or profits or public rights of way over private property.

(xvii) We propose to recommend general provision that the Act is to have effect subject to (a) the provisions of any Act in force immediately before the commencement of the proposed legislation (b) any rule of law defining special standards of care for special classes of persons.

(xviii) We propose to recommend that an occupier may extend, restrict, modify or exclude by agreement or otherwise the duties imposed by the Act in so far as he is entitled by law to do so. We propose, however, that the liabilities in tort imposed by the proposed legislation should not be extended, restricted, modified, excluded or confirmed by the contract unless (a) the contract makes express provision to that effect, or (b) the contract makes implied provision to that effect and it appears from the express terms of the contract or from the circumstances in which the contract was made that the parties directed their minds to the matter and intended to agree on the provision.

(xix) We propose to recommend that a tort liability under the provisions of the proposed legislation to third parties to a contract or tenancy will not be excluded by any provision of the contract or tenancy to which they were not privy.

(xx) We do not propose to make any recommendation regarding landlords or vendors of property.

(xxi) We do not propose to make any recommendation regarding the defence of assumption of risk or the application of the rules relating to contributory negligence because we consider that it will be clear enough that this defence and these rules will apply in relation to cases arising under the proposed legislation in the same way as to ordinary actions for negligence.